Excerpt:civil - court mistakes - sections 152 and 153 a of code of civil procedure, 1908 - whether courts competent to amend judgments on pendancy of appeals against said judgment - by virtue of section 153 a court competent to amend its own judgment which is subject matter of appeal is dismissed in limine - said competency not available when matter decided on merits.
- - referring to this the supreme court said in para 11 of its judgment thus :now, it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention......petitioner before us. section 153-a of the code of civil procedure has been incorporated in the code by code of civil procedure (amendment) act, 1976. that section reads thus :'153. a power to amend decree or order where appeal is summarily dismissed. where an appellate court dismisses an appeal under rule 11 of order xli, the power of the court to amend, under section 152, the decree or order appealed against may be exercised by the court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the court of first instance.'when the statute makes specific provision that when the dismissal of an appeal is in limine under order xli, rule 11 the court of.....

Judgment:

Subramonian Poti, J.

1. Section 152 of the Civil P. C. empowers a Court either on its own motion or on the application of any of the parties to correct, at any time, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. Is a Court competent to exercise this power of correcting its own judgment, decree or order in cases where such decree, judgment or order has been the subject of appeal to the higher Court even if such Court merely confirmed the judgment, decree or order of the lower Court. Our learned brother Vadakkel, J. before whom this revision came up felt that the view expressed by a Division Bench of this Court in Malayalam Plantations Ltd. v. Varkey Chacko (1969 Ker LT 710) that the Court of first instance has inherent power to correct accidental slips and errors committed by it as envisaged under Section 152 of the Code despite the fact that the decree and judgment of that Court have been confirmed, varied or reversed by the Appellate Court called for consideration by a larger Bench. The case came on reference to the Division Bench. The matter was referred to a Full Bench as the Division Bench felt that it was the correctness of the decision of a Division Bench of this Court that was doubted.

2. In the case before us an application for amending the judgment dated 31-8-1967 in O. S. No. 887 of 1965 of the Munsiff's Court of Nadapuram, a suit for partition, was rejected by the Court by its order dated 12-9-1977, the Court observing that the judgment was challenged in appeal and second appeal and consequently the decree of the Court of first instance had merged into the decree of the AppellateCourt in second appeal. It was found that in such a case there was no power in the Court of first instance to amend the judgment The amendment sought for concerned the correction in the judgment of the details of allotment of shares to which the petitioners lay claim. The petitioners claim to have obtained an assignment of the shares of defendants 9 to 16 and 19 to 23 in the B Schedule items. Their complaint is that though the assignment to them was noticed in para 18 of the judgment, by an accidental slip this is not noticed in para 20 of the judgment with the consequence that the items were described as pertaining to the shares of the defendants 22 and 23. We are not at the moment concerned with the question whether this could be said to be an accidental slip or omission. The scope of the power to effect a correction under Section 162 will have to be decided by the Court below in case it is found to have authority to entertain the application for amendment. That Court has not exercised such power for the reason that once the appeal against its judgment has been disposed of it should not correct its judgment in exercise of the power under Section 152. How far this view is sustainable in law is the matter arising for consideration by us in this case.

3. Vaidyalingam, J. who was then a learned Judge of this Court had in Kesavan v. Gopalan (1964 Ker LR 155) occasion to consider the question of merger when a decree of the original Court is confirmed by the Appellate Court. In that case motion for correction under Section 152 was made in the Court of first instance but in view of the fact that the Judgment of that Court was the subject of decision in appeal, the learned Judge held that the rule of merger operated to render the Appellate Court alone competent to effect any amendment. Evidently this rule was not followed by the Division Bench in 1960 Ker LT 710, a case where the Court held that there was an inherent power in the Court of first instance to act under Section 151 and Section 152 of the Code notwithstanding the fact that the case had been subjected to an appellate decision. In taking this view the Court was persuaded by the decisions of the Supreme Court in Sama-rendra v. Krishna Kumar (ATR 1967 SC 1440) and in Janakirama Iyer v. Nilakanta Iyer (AIR 1962 SC 633). It would be appropriate to examine thescope of the decisions of the Supreme Court in view of the challenge to the correctness of the Division Bench decision before us.

4. We are afraid the question whether the Court of first instance could deal with the application under Section 152 of the Code when the decision of that Court had merged in that of the higher Court was not as such in controversy in Samarendra v. Krishna Kumar (AIR 1967 SC 1440). In that case, in a mortgage suit, a preliminary decree for sale was passed though the suit was for foreclosure and possession. This mistake went unnoticed even in the High Court when it confirmed the decree of the trial Court. Subsequently, the final decree was passed not exactly in terms of the preliminary decree, in the sense, what was passed was not a final decree for sale but a final decree for foreclosure and possession. Challenge having been made to this action of the Court in passing the final decree in variance with the preliminary decree the Supreme Court referred to the case in Mellor v. Swire ((1885) 30 Ch D 239). In that case Lord justice Bowen, L. J. had said :

'Every Court has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the Court so as to carry out its intention and express the meaning of the Court when the order was made.'

Reference there was evidently to the inherent power of the Court to correct the errors in its judgment, a power which has found statutory recognition in Section 152 of the Code. Referring to this the Supreme Court said in para 11 of its judgment thus :

'now, it is well settled that there is an inherent power in the Court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.'

The Court further said thus :

'Under Section 152, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either on its own motion or on an application by any of the parties. It is thus manifest that errors arising from anaccidental slip can be corrected subsequently not only in a decree drawn up by a ministerial officer of the Court but even in a judgment pronounced and signed by the Court.'

The Court further noticed that the Subordinate Judge had, by oversight, passed a preliminary decree for sale in a suit for foreclosure and possession and in the circumstances, the trial Court had the power to correct its own error when passing a final decree for foreclosure. Evidently, the question in the form in which it is now before us in this case was not before the Supreme Court and we do not think that the Division Bench could have read that decision in support of the view it has expressed in the case before it. The decision in Janakirama Iyer v. Neelakanta Iyer (AIR 1962 SC 633) also does not appear to support the view expressed by the Division Bench. The question of propriety of the High Court in amending its judgment in appeal by correcting the term 'mesne profits' into 'net profits' to reflect what was really meant by the High Court while the case was pending before the Supreme Court in further appeal was one of the matters that was considered by the Supreme Court. The question whether the correction was one to which Ss. 151 and 152 of the Code would apply was urged before the Supreme Court and in that context the Supreme Court said thus :

'Thus, there can be no doubt that the decretal order drawn in the High Court through error introduced the words 'mesne profits' and such an error could be corrected by the High Court under Sections 151 and 162 of the Code even though the appeals may have been admitted in this Court before the date of correction.'

Evidently, the controversy before the Supreme Court did not concern any question of merger of a decree in that of the Appellate Court and the question of moving the trial Court for correction after such merger was not a matter on which the Supreme Court spoke in that case. Thus, support cannot be found for the view expressed by the Division Bench to 1969 Ker LT 710 in the two decisions of the Supreme Court adverted to .

5. Though there were divergent views expressed by Courts in India on the question of merger of the decree of the trial Court in that of the Appellate Court the preponderance of the authority seems to favour the view that there would be such merger, Chandrakala Devi v. Central Bank of India, Ltd. (AIR 1959 Cal 153); Huasain Sab v. Sitaram (AIR 1953 Bom 122); Minni' Zulekha Bi v. Kulsum Bi (AIR 1941 Mad 123); Subbamma v. Madhavarao (AIR 1946 Mad 492); Ramsunder v. Panakuer (AIR 1979 Pat 5); Kulwanti Devi v. V. A. Singh (AIR 1959 Pat 591) and Ramanna v. Sreeramalu (AIR 1958 Andh Pra 768) all express the view that a decree of the trial Court will merge in the decree of the Appellate Court. A later decision of the Allahabad High Court in Chintamani v. Debi Prasad (AIR 1934 All 971) takes a contrary view and referring to the words 'at any time' occurring in Section 152 of the Code considers it as indicating that the section gives power to amend even after the appeal is decided. But this decision of the Allahabad High Court does not notice the earlier Pull Bench decision of the same Court in Muhammad Sulaiman Khan v. Muhammad Yar Khan ((1889) ILR 11 All 267). The Allahabad High Court itself is seen to have reverted to the earlier view in Durga Singh v. Wahid Raza (AIR 1965 All 226).

6. As early as in 1910 the Privy Council had in Brij Narain v. Tejbal Bikram Bahadur ((1910) ILR 32 All 295) indicated that alteration of a decree by the Court which passed it, if that had been affirmed in appeal, was without Jurisdiction. An application for amendment was made in that case on the ground that though the judgment dated 30th Jan., 1901 gave to the mortgagee no interest pendents lite or future interest the decree based on if allowed such interest. The Subordinate Judge, notwithstanding the fact that the decree had been confirmed in appeal, allowed the amendment, striking out the award of interest pendente lite and future interest. It was in that context that the power to make that amendment was challenged. The challenge succeeded. The Privy Council said thus:

'Their Lordships have not had the advantage of hearing the case argued for the respondent, but they think the High Court have themselves said enough to make it clear that if the decree of the first Court was made without jurisdiction as altering a decree after it had been affirmed on appeal in the case of Lachman Das, so also thealteration in Brij Narain's case was equally ineffectual, and ought not to have been allowed to stand.'

'A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in presence of both the parties would certainly be arrived at after due consideration of the evidence and all the arguments and would therefore be a judgment and such Judgment when pronounced would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below'.

The rule in Brij Narain'a case already adverted to was noticed and approved by the Supreme Court in Gojer Brothers v. Ratan Lal (AIR 1974 SC 1380). At page 1334 the Supreme Court said thus:

'An application of this very principle yields the result that if the Court of appeal confirms, varies or reverses the decree of the lower Court, the decree of the appellate court is the only decree that can be amended: Brij Narain v. Tejbal, (1910) 37 Ind App 70 (PC) or that the limitation for executing a decree runs from the date of the decree capable of execution and that is the decree of the appellate court which supersedes that of the court of first instance 53 Ind App 197 : (AIR 1926 PC 93); or that if mesne profits are ordered from the date of suit until the expiry of three years after the date of the decree, the decree to be considered is the decree capable of execution so that if the decree of the trial is confirmed in appeal, three years will begin to run from the date of the appellate decree (1900) 27 Ind App 209 (PC).'

It appears to us, therefore, that the view taken by the Division Bench in Malayalam Plantations Ltd. v. Varkey Chacko (1969 Ker LT 710) is, with great respect to the learned Judges, not the correct view.

7. There is another answer to the case of the revision petitioner before us. Section 153-A of the Code of Civil Procedure has been incorporated in the Code by Code of Civil Procedure (Amendment) Act, 1976. That section reads thus :

'153. A Power to amend decree or order where appeal is summarily dismissed. Where an appellate Court dismisses an appeal under Rule 11 of Order XLI, the power of the Court to amend, under Section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.'

When the statute makes specific provision that when the dismissal of an appeal is in limine under Order XLI, Rule 11 the court of first instance will have the power to correct the decree or order, it logically follows that this would not be the case where the appeal has been dismissed not in limine but on the merits. This would be sufficient to hold against the revision petitioner and would be a complete answer to his case. Counsel for the revision petitioner urges that we should not read Section 153-A in a plain manner, but on the other hand understand that provision in the background that divergent views had been expressed by courts on the question whether a dismissal of the appeal in limine would result in merger of the decree of the trial court in the decree of the appellate court and that was sought to be resolved by the amendment. The courts which took the view that when an appeal is disposed of on the merits, the decree of the trial court merges with that of the appellate court, were themselves divided on the issue whether in cases where the disposal of the appeal by the appellate court was in limine under Order XLI, Rule 11 of the Code there would be such merger. According to counsel Section 153-A of the Code is intended to solve this situation and to provide that in such a case the decree that is to be amended would be that of the court of first instance. The courts in India were more or less uniform on the question of merger of decree in the appellate decree when the appeal is disposed of on the merits, of course, barring exceptions such as the view expressed by this Court in 1969 Ker LT 710. Apparently, the legislature did not think it necessary to make any provision in regard to the amendment in cases where appeals are disposed of not under Order XLI, Rule 11 but on the merits. Section 153-A eloquently Implies that in cases of disposal of appeals otherwise than under Order XLI, Rule 11 the Court of first instance would not have the power to amend its decree or order.

In these circumstances we hold that except in cases to which Section 153-A of the Code of Civil Procedure applies, where there has been an appeal, the decree under appeal merges in the decree in appeal and it is only the appellate court that could correct or amend the decree under Section 152 of the Code. In this view the order of the court below is correct and calls for no interference. The Revision Petition is dismissed. Parties are directed to suffer costs.